- Windy Hilltops - http://www.windy.gen.nz -

Trespassing from public land

A story hit the news not long ago, based on a DOC media release [1] (alternative Stuff rendition [2]), where a group of people (labelled ‘hunters’ but better described as a group of dope smoking idiots with guns) have been trespassed from Kaweka Forest Park. It sounds as if they’ve been going in, acting like obnoxious morons and between that breaking a variety of laws and rules in ways that ruin other people’s experience, such as discharging weapons after dark, burying caches of illegal stuff (weapons, cannabis), and so on.

It doesn’t seem unreasonable to deal with people like this, and the behaviour described isn’t something I want anyone to have to put up with, but one thing that confused me was the reference to Trespass Law.

The Conservation Act and the National Parks Act essentially guarantee public access to public land, unless it’s closed or access is restricted for a variety of specific reasons that are specified in law. I won’t get into the detail, but a couple of years back I wrote about it all [3]. The result is that DOC can’t simply tell you to get out, at least without certain paperwork which isn’t common: its role is typically one of a caretaker and not a gatekeeper or an owner.

From time to time there’s controversy about DOC implying, intentionally or otherwise, that it’s illegal to enter somewhere, even though that’s untrue. My pet annoyance is “track closed” signs which tend to be DOC’s way of saying they’re no longer maintaining a track, yet at the same time use the term “closed” which is used in law (and popular understanding) to mean that entry is illegal.

Given all this precedent, I went to look up the Trespass Act [4] to find out what authority DOC’s supposedly using to keep undesirible people out. It hasn’t answered many questions. Much of the Trespass Act is specifically about private land, so wouldn’t apply on the DOC estate. Of the rest, the most relevant parts seem to be sections 3 and 4, where an “occupier” can tell a person to leave or stay off. Therefore, for this to work, DOC must presumably be considering itself the “occupier” of the land, or otherwise delegating that authority to Police.

Maybe this sounds reasonable on the face of it. My problem here is that when DOC interprets the law this way, with itself as “the occupier”, it’s essentially stepping around all those provisions in Conservation Law, via the Conservation Act and the National Parks Act, which restrict its ability to keep people out unless there’s a specific defined reason.

As you’d expect for application on private land, the Trespass Act provides no constraints about the person being trespassed having to be undesirable or breaking laws before they can be ordered to stay off. But if DOC interprets that it can be used on public land to evict people for reasons which neither the Conservation Act nor the National Parks Act specify as a legitimate reason for eviction, where does that interpretation stop?

Even if we trust DOC officials today, and not everyone does, a concern I have is that the scope of this could creep so that in future we could see DOC applying the Trespass Act to restrict access to people who it finds inconvenient for random other reasons, or to tell large numbers of people (or all people) that they’re not allowed on public land for DOC’s own convenience, even if they’re not being directly doing illegal things and the Conservation Act or National Parks Act wouldn’t typically allow DOC to close access to the land in question.

I’ve raised this question in the NZ Tramper forums [5], receiving a mixture of feedback ranging from cautious agreement to claims that I’m being overly nitpicky and the ends justify the means and that DOC is trustworthy enough that my concerns are unfounded. Maybe that’s the case or maybe not, but without clearly defined boundaries of how DOC and Police are applying the law and how it might be applied in future, there’s a lot of murkiness which makes me uncomfortable about possible consequences of what seems to be happening here. (Side note: someone else briefly raised the same question in the fish n’ hunt forums [6], so it wasn’t just me!) If anyone has further thoughts on this, please feel welcome to add them.

In DOC’s press release, many activities referred to are directly illegal, with potentially hefty penalties under any or all of firearms licensing restrictions, conservation law or the Crimes Act. In 2013, maximum penalties for offences under the Conservation Act, which applies to Kaweka Forest Park where this occurred, were increased ten-fold [7] so that courts could fine individuals up to $100,000, or imprison them for up to a year.

If effective prosecution of people doing this stuff isn’t practical, or isn’t appropriate for some reason, I think it’d be better to look at changing the law, above board, to clearly define what DOC and Police should be able to do. A good start might be to specifically make “trespassing” a clear optional action that can be applied by DOC officials in well defined circumstances.

Assuming DOC’s media release description is correct then the activities described are both obnoxious and dangerous to others. I’m not excusing it. It needs to be stopped and I appreciate what’s happened is an immediate relief for others who had to put up with these guys. But I’m also wary about DOC and Police seeming to use one part of law, mostly applied for blocking entry to private land, to step around the constraints meant to be placed on DOC by another part of law for guaranteeing public access [8] except for specified circumstances [9]. Furthermore, the Conservation Act isn’t just more closely associated with the Department of Conservation. It defines its very existence [10].